Ring was a case about a defendant's Sixth Amendment right to have
capital aggravating factors proven to the petit jury beyond a
reasonable doubt because they are facts that increase the penalty for
his crime beyond the otherwise applicable statutory maximum. In Allen's
case, the petit jury made the findings that Ring expressly requires.
Ring did not address whether the Fifth Amendment also requires capital
aggravating factors to be found by the grand jury and included in the
indictment. Nonetheless, we think that Ring necessarily implies such a
Fifth Amendment requirement.
Ring did not address the indictment
issue because it involved a state prosecution, and the Fifth
Amendment's grand jury requirement has not been construed to apply to
the states. The same is true of the predecessor to Ring, Apprendi v.
New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). We therefore look to the predecessor to Apprendi, Jones v.
United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),
which did involve a federal prosecution. There, we find the rule that
"under the Due Process Clause of the Fifth Amendment and the notice and
jury trial guarantees of the Sixth Amendment, any fact (other than
prior conviction) that increases the maximum penalty for a crime must
be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt." Id. at 243 n. 6; see also Apprendi, 530 U.S. at 476
(same (quoting Jones )).
[1] In other words, the same facts that
the Sixth Amendment requires to be proven to the petit jury beyond a
reasonable doubt in state and federal prosecutions must also be found
by the grand jury and charged in the indictment in federal
prosecutions. We therefore conclude that the Fifth Amendment requires
at least one statutory aggravating factor and the mens rea requirement
to be found by the grand jury and charged in the indictment. See United
States v. Robinson, 367 F.3d 278, 284 (5th Cir.), cert. denied, ---
U.S. ----, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); United States v.
Higgs, 353 F.3d 281, 299 (4th Cir.2003), cert. denied, --- U.S. ----,
125 S.Ct. 627, 160 L.Ed.2d 456 (2004); United States v. Quinones, 313
F.3d 49, 53 n. 1 (2d Cir.2002), cert. denied, 540 U.S. 1051, 124 S.Ct.
807, 157 L.Ed.2d 702 (2003). The indictment must include at least one
statutory aggravating factor to satisfy the Fifth Amendment because
that is what is required to elevate the available statutory maximum
sentence from life imprisonment to death. In turn, at least one of the
statutory aggravating factors found by the petit jury in imposing the
death sentence must have been one of the statutory aggravating factors
charged by the grand jury in the indictment. See Higgs, 353 F.3d at 299
n. 7. The same is true of the mens rea requirement.
Having reached this conclusion, it is
clear that Allen's indictment suffers a Fifth Amendment defect. The
petit jury found two statutory aggravating factors in sentencing him to
death: that Allen "in the commission of the offense, or in escaping
apprehension ..., knowingly create[d] a grave risk of death to one or
more persons in addition to Richard Heflin," and that he "commit[ted]
the offense in the expectation of the receipt of anything of pecuniary
value." The petit jury also found the requisite mental state in
sentencing Allen to death: that he "intentionally inflicted serious
bodily injury which resulted in the death of Richard Heflin." The
government had included these factors and the mens rea requirement in
its notice of intent to seek the death penalty, but they were not
charged in the indictment because Allen's prosecution preceded Ring by
years. Allen presciently raised a Jones-type objection before the
district court, preserving this error for our review. Hence, this is
not a plain-error case. We next consider whether the failure to charge
at least one statutory aggravating factor and the mens rea requirement
in the indictment was structural error
II.
*3 [2] Allen rightly directs our
attention to the strongest case in his favor, Stirone v. United States,
361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Stirone was charged
by indictment with unlawfully interfering with the movement of sand in
interstate commerce for use in mixing concrete. Over his objections,
the district court allowed the government to present at trial evidence
that Stirone also interfered with the movement of steel in interstate
commerce, and the district court instructed the jury that Stirone was
guilty if he interfered with either sand or steel that moved in
interstate commerce. See id. at 213-14. The Supreme Court found a
violation of Stirone's Fifth Amendment right to indictment by a grand
jury, concluding that "[d]eprivation of such a basic right is far too
serious to be treated as nothing more than a variance and then
dismissed as harmless error." See id. at 215-17. Concluding that
"neither this nor any other court can know that the grand jury would
have been willing to charge that Stirone's conduct would interfere with
interstate exportation of steel," and that "it cannot be said with
certainty that with a new basis for conviction added, Stirone was
convicted solely on the charge made in the indictment the grand jury
returned," the Supreme Court overturned his conviction. See id. at
217-19. Stirone quoted Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 30
L.Ed. 849 (1887), for the proposition that it is beyond "the province
of a court to change the charging part of an indictment to suit its own
notions of what it ought to have been, or what the grand jury would
probably have made it if their attention had been called to suggested
changes." See Stirone, 361 U.S. at 216.
Allen urges that Stirone and Bain show
that the defect in his indictment must be treated as a structural error
requiring automatic reversal without a showing of prejudice to the
defendant. We cannot agree. At the time of Stirone and Bain, the
Supreme Court had not yet grappled with the question whether
constitutional error can be harmless. The Court did so expressly for
the first time in Chapman v. California, 386 U.S. 18, 20, 23- 24, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967), when it rejected the view that all
constitutional errors automatically call for reversal and held
that-with a few exceptions-federal courts may not grant relief when a
constitutional error is shown to be harmless beyond a reasonable doubt.
Next, in Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d
460 (1986), the Court "emphasized ... that while there are some errors
to which Chapman does not apply, they are the exception and not the
rule." "Accordingly, if the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other
errors that may have occurred are subject to harmless-error analysis."
Id. at 579
Then, in Arizona v. Fulminante, 499
U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme
Court surveyed its precedent to identify exactly which constitutional
errors constitute "structural defects ... which defy analysis by
'harmless-error' standards." The Court identified five such errors: the
total deprivation of the right to counsel, the denial of the right to
an impartial judge, unlawful discrimination in the grand-jury selection
process, the denial of the right to self-representation at trial, and
the denial of the right to a public trial. See id. at 309-10. Notably
absent from this list of structural defects is the type of defective
indictment at issue in Stirone and Bain.
*4 Most recently, in Neder v. United
States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the
Supreme Court again listed the limited class of cases in which it had
found an error to be structural: the five types of error listed in
Fulminante, plus the giving of a defective instruction on reasonable
doubt (a type of error recognized as structural for the first time in
1993, and hence not included in Fulminante 's 1991 list). Again, the
Court made no reference to the type of defective indictment at issue in
Stirone and Bain.
We tend to think that the Supreme Court
meant for its lists of structural errors in Fulminante and Neder to be
exhaustive. But even if we are wrong on that count, we believe that the
holding of Neder has particular significance to the case at bar,
because Neder is in some ways the mirror image of Allen. Neder was
charged by indictment with tax fraud, which has as an element that the
false statements made by the taxpayer be material. Over Neder's
objection, the district court instructed the petit jury not to consider
the materiality of any false statements he made because materiality was
an issue of law for the district court to decide. See id. at 6.
Although the Supreme Court agreed that this deprived Neder of his Sixth
Amendment right to have every element of the charged offense be proven
to the petit jury beyond a reasonable doubt, the Court concluded that
the error was not structural and should be analyzed for harmless error.
See id. at 8-15. The Court found the error harmless beyond a reasonable
doubt by "conduct[ing] a thorough examination of the record" of the
evidence presented at trial and concluding that "no jury could
reasonably find" that Neder's false statements were not material
because the record did not "contain[ ] evidence that could rationally
lead to a contrary finding with respect to the omitted element" of
materiality. See id. at 16-20
We find Neder instructive because, just
as Neder was deprived of his Sixth Amendment right to have the petit
jury determine an essential element of his offense, Allen was deprived
of his Fifth Amendment right to have the grand jury decide whether to
charge the statutory aggravating factors and the mens rea requirement
that are the functional equivalent of elements of his offense. Given
that the Supreme Court concluded that the Sixth Amendment error was not
structural and should be analyzed for harmless error, we are persuaded
that we should approach the Fifth Amendment error the same way. We
therefore conclude that the defect in Allen's indictment was not
structural error. See Robinson, 367 F.3d at 285-86; Higgs, 353 F.3d at
304-06; accord United States v. Moss, 252 F.3d 993, 1000-01 & n. 8
(8th Cir.2001) (Apprendi indictment error is not structural), cert.
denied, 534 U.S. 1097, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002). Thus, we
proceed to inquire whether the defect in Allen's indictment was
harmless beyond a reasonable doubt.
Focus this week is the Executive
Summary of
Minimizing
Risk: A Blueprint for Death Penalty Reform in Texas, A Texas
Defender Service Report:
Executive Summary
There is palpable risk that innocent
people are being sent to death row in
Texas because the criminal justice system evades sufficient scrutiny,
lacks meaningful
judicial review, and is rife with sweeping inadequacies in the rules
and
procedures relating to capital trials. Identifying these problems is
not enough.
Other states have implemented reforms, including improving counsel
standards,
recording in-custody interrogations, and improving eyewitness and photo
spread identification procedures, which have proven effective in
minimizing risk
of wrongful conviction.
In an encouraging move, in March 2005,
Texas Governor Rick Perry established
a nine-member Criminal Justice Advisory Council with an array of
powers to review issues in the criminal justice system. The Council is
charged
with advising the Governor on procedures that are needed to meet
advances in
technology, methods of ensuring that law enforcement investigation
procedures
are accurate, processes to provide for public safety and confidence in
convictions,
and changes in law necessary to improve the criminal justice system.
The Council
will make recommendations regarding necessary reforms to be delivered
to
the Governor and Texas Legislature prior to the 2007 Legislative
Session.
This report analyzes the Illinois
Commission’s 85 recommendations in the
context of Texas’ criminal justice system, and provides a framework for
meaningful
review, particularly as it applies to the capital punishment system. It
should be considered by the Council as it undertakes its assigned and
serious
mission. This report reveals critical needs and identifies viable
solutions. Like
Illinois, Texas can take steps to make these reforms a reality.
The study — a comprehensive comparison of
the “best practices” recommended
by the Illinois Commission on Capital Punishment to existing procedures
in Texas — found that Texas does not comply with 80% of the safeguards
of the criminal justice system embodied in these model practices that
are applicable
to Texas. Our findings reveal an urgent need for death penalty reform
in nine specific areas to reduce the risk of wrongful convictions and
arbitrary
death sentences.
Texas has executed 340 people in the
modern death penalty era, 28 times
the number executed by Illinois, yet its nine exonerations lag far
behind those
of Illinois. Texas is at unacceptable risk for wrongful conviction and
execution,
an especially troubling fact given its status as the undisputed leader
in executions
among the 38 states with the death penalty. There is both unnecessary
risk and compelling evidence that innocence cases in Texas are not
being discovered
and that innocent persons are incarcerated even on death row.
Illinois’ experience with capital
punishment — and its sobering failures —
has been attributed to procedural inadequacies that have come to light
as a result
of the Illinois Commission’s Report. Texas utilizes a death penalty
system
that is substantially similar to that of Illinois, with important
exceptions that
render our system far less reliable than that of Illinois. Notable
failures in the
Texas system include:
- The absence of uniform police and prosecutorial investigative
procedures
including eyewitness identification procedures, videotaping of
interrogations,
and use of jailhouse informants
- Deficiencies in accessibility and reliability of forensic
evidence
- Excessive prosecutorial discretion in charging decisions
resulting in racial
and geographic disparity
- Excessive number of death penalty eligibility factors and
over-reliance on
the murder during the course of a felony eligibility factor
- The prevalence of under-qualified or resource-starved defense
attorneys
- The absence of a statewide public defender’s office
- Scant allocation of resources and lack of competent counsel in
state postconviction
proceedings
- An unreliable capital sentencing scheme, which does not weigh
aggravating
and mitigating factors but instead hinges on the speculative “future
dangerousness” inquiry
- The absence of a life-without-parole sentencing option
In 2000, prompted by serious questions
about the accuracy of the capital
punishment system and a string of wrongful convictions, the Governor of
Illinois
imposed a moratorium on capital punishment in Illinois. Shortly after
doing so, he appointed a Commission on Capital Punishment, consisting
of
legal experts on all sides of the issue, including state and federal
prosecutors,
defense attorneys, former judges, and civil lawyers, to study the
problems in
the state’s administration of the ultimate punishment.
After two years of intensive study and
comprehensive consideration of a
broad range of materials and cases, the Illinois Commission released a
comprehensive
report covering every stage of the death penalty process and proposing
85 specific recommendations for reform designed to increase the
reliability and fairness of every stage of the process.
Since the publication of the Illinois
Commission’s Report, the Illinois Legislature
has adopted approximately one-third of the reforms recommended and
it continues to consider the implementation of other reforms.
Specifically, Illinois
has improved its procedures in the following areas:
- Recording in-custody interrogations
- Eyewitness lineup and photo spread identification procedures
- Access to exculpatory evidence
- Limitations on jailhouse snitch testimony
- Access to DNA and other forensic testing
- Two additional mitigating circumstances
- Certification and training of trial judges
- Limitations on capital punishment
- Broader authority of the Illinois Supreme Court to review death
sentences
From the Blawg
Crime & Federalism:
He's dead. And I am among those who
killed him. In the dead of this
morning, I feel no relief; no sense that things have been made right. I
feel only betrayal. Was I tricked into believe that killing could yield
justice?
Michael Ross, serial killer, human being, was strapped to a gurney and
poisoned to death at 2:25 a.m. this morning. Killing Time The State of
Connecticut, the vast legal fiction of which I am a member, killed him.
I guess that means his blood is on my hands now.
I supported his right to choose to seek no further appeals. I supported
it because I believe in the dignity and autonomy of persons. I
supported it for the same reason I supported Terry Schiavo's right to
die. The state, government, all the artifacts of power are mere tools
we have created to serve human, and therefore, limited ends. I no more
want the state telling me I must live than that I must die. Can the pot
say to the potter why makest me so?
So why did I help to kill Michael Ross?
Was it because some of his victims' families wanted it? Lord, I hope
that was not it. That would be the most tawdry trick of all. Take a
person twisted, bent, shattered, destroyed and warped by almost
unimaginable grief and put them and their sensibilities in charge of
life and death decisions? That would be folly. We don't let drunks
drive because their perceptions are so warped; should we put the ship
of state in the hands of those blinded by sorrow and rage?
I did not want to kill him, yet I did not rush to the courthouse doors
throwing sand at judges and asking them to build castles. It pained me
to watch friends and colleagues enlist in this battle and arm
themselves with folly: "Death row syndrome," predictions of waves of
suicide, claims with no conceivable theory of standing. All these acts
of ritual self-immolation by the lawyers earned them the right to
agonize on film clips and in sound bytes. They enjoyed the illusion of
efficacy, or at least good publicity. But all this play-acting at
justice was nearly as depressing as the calls for vengeance. We set
about killing a man and each of us became a caricature.
I killed Michael Ross today and in the sleepless predawn of the
selfsame day I feel nothing but hollow disappointment. Nothing has
changed. No one is better off. Oh, I hear the puffery of those who
called Michael Ross a monster and asked what sickness yields sympathy
for such a man.
Let me be clear: I have no sympathy for Michael Ross, the man I killed.
No, the people I feel sorry for are we the living. We're just like
Michael now. Substitute vengeance for sexual sadism and what have you?
A killer. Sit back, assess, choose and then restrain the victim with
lethal intent: Have I described a rape murder or an exection? I have
described both.
I represented Michael Ross briefly in a civil suit over his right to
receive reading material directly from publishers. He was on death row
then. He was no mere cipher. He was not the sum of his worst moments.
He was more than that.
Today I am less than what I was before the killing. I am less because
now I have killed. Killing is not justice. Killing is the abandonment
of reason, of faith and hope and all that distinguishes me from lesser
animals. Killing is becoming just like Michael Ross.
Tonight I killed. Tonight Connecticut unwrapped the machinery of death
and went out for a rage ride. It all happened so fast. How long before
we kill again? Numb now to the horror will it be easier to kill again?
Will I need to do it again because this first death delivered so much
less than I had hoped? Perhaps I can get the technique right next time.
Perhaps the next killing will redeem. Who is next? Others reside on
death row. Let me pick one, select a man and mark him for death, set
the hour, plan the means, and watch as he succumbs to my power.
Meet the new serial killler. It is me.
DPIC notes:
Independent Audit of Virginia's DNA Lab Prompts Review of 150 Cases
An independent audit of Virginia's central crime laboratory initiated
by the present governor found that the lab had botched DNA tests in the
death penalty case of Earl Washington (pictured). The finding prompted
Gov. Mark Warner to order a review of 150 other criminal cases and the
development of procedures to insulate the lab from outside political
pressures.
The audit was conducted by the American Society of Crime Laboratory
Directors. It found that the Virginia lab's internal review process was
flawed, and it raised concerns that lab workers had felt pressured to
produce quick and conclusive results in the Washington case, even when
the evidence was unclear. Washington had been sentenced to death for a
1982 murder and rape. His death sentence was commuted in 1994 after DNA
tests first threw doubt on his guilt. He was eventually granted an
absolute pardon in 2000 and freed from prison. Tests commissioned by
defense lawyers in 2004 have implicated another suspect, who is in
prison in an unrelated rape case. The audit concluded that the state
lab improperly excluded this suspect as the source of DNA found on the
victim.
Betty Layne DesPortes, a defense attorney who heads a legal panel for
the American Academy of Forensic Science, commented about the audit's
findings: "You have to have doubts about the reliability of any case
coming out of there. How can we be sure that this case wasn't typcial."
Virginia is second only to Texas in the number of executions carried
out since 1976. (N.Y. Times, May 8, 2005). See Gov. Warner's Press
Release, with link to the entire report. See also Innocence.
NEW RESOURCE: Index of Death Penalty Articles for 2004
In the course of its research, DPIC collects relevant death penalty
articles that have appeared in print and on media Web sites. Our
collection certainly does not contain all such articles, nor do we
claim that it represents the "best" articles. It is only a
representative sample of the extensive coverage given to capital
punishment in print in a particular year. For those interested in
examining this coverage, we have prepared an index of the articles from
2004 in PDF format. For more information about this index, click
here. See also, Articles.
Support for the Death Penalty Drops Sharply in Leading Execution City
Public support for the death penalty has dropped sharply in Houston,
Texas according to the 2005 Houston Area Survey conducted by Rice
University. For many years Texas has led the country in
executions, and Harris County (Houston) has led all Texas counties in
sending inmates to death row and in executions. But most Houston
residents would prefer the sentence of life without parole rather than
the death penalty for those who commit murder. Sixty-four percent
chose life without parole, increasing from 57% who chose that option in
2003. Overall, support for the death penalty (with no alternative
offered) dropped to 60% this year, down from 68% support in 1999,
according to the survey. (See poll results, Houston Chronicle,
May 6, 2005). See Public Opinion and Life Without Parole.
NEW VOICES: Louisiana Chief Justice Demands Fair Trials for the Poor
Chief Justice Pascal Calogero of the Louisiana Supreme Court called
upon the state legislature to provide adequate funding for indigent
defendants in his State of the Judiciary address. The court had
earlier ruled that judges may halt prosecutions in cases where funds
have not been made available for an adequate defense. The Justice
concluded:
As a Supreme Court Justice, I must be an advocate of
compliance with the mandates of our state and federal constitutions,
and therefore, I admonish you, simply, to do the right thing.
Provide for a workable and adequately funded indigent defense system,
so that another victim does not have to go through the agony of an
overturned conviction and repeat of grueling trial testimony, or so
that an innocent person is spared the ordeal of an unjust conviction
and punishment. This is just one of your many challenges, as well
as your responsibility. Let us show the people that our State is
more than up to that challenge.
(2005 State of the Judiciary Address to the Louisiana Legislature,
Pascal F. Calogero, Jr., Chief Justice, Supreme Court of Louisiana, May
3, 2005). See also Representation and New Voices.
MAJOR STUDY Finds Arbitrary Application of the Death Penalty
In a comprehensive study covering 20 years and thousands of capital
cases in Ohio, the Associated Press found that the death penalty has
been applied in an uneven and often arbitrary fashion. Among the
conclusions of the study that analyzed 1,936 indictments reported to
the Ohio Supreme Court by counties with capital cases from October 1981
through 2002 were:
* Offenders facing a
death penalty charge for killing a white person were twice as likely to
go to death row than if they had killed a black victim. Death sentences
were handed down in 18% of cases where the victims were white, compared
with 8.5% of cases where victims were black.
* Nearly 1/2 of the 1,936 capital punishment cases
ended with a plea bargain. That includes 131 cases in which the crime
involved two or more victims; 25 people had killed at least 3 victims.
* In Cuyahoga County, a Democratic stronghold, just
8% of offenders charged with a capital crime received a death sentence.
In conservative Hamilton County, 43% of capital offenders ended up on
death row.
State Supreme Court Justice Paul Pfeifer, who co-sponsored the death
penalty law in 1981 when he was a member of Ohio's Legislature, said
the findings are disturbing and confirmed his fears that race would be
a contributing factor: "That has to be very disconcerting and
alarming to all of us," he said. (Associated Press, May 5,
2005). See Race and Studies.
Death Row Inmate's Mental Health Crumbles Even As Relief May Be Near
During 25 years on Texas' death row, Cesar Fierro's mental health has
deteriorated to the extent that his attorney hardly recognizes him.
Since being sentenced to death in 1980, his mother has died, his
brother has died, his wife divorced him and his daughter stopped
visiting him. Gradually, he refused to even speak with his lawyers.
"He wouldn't come out of his cell for months at a time unless he was
forcibly extracted," says David Dow, a constitutional law professor at
the University of Houston Law Center and director of its Texas
Innocence Network. "He refused to shower and there were feces on his
cell wall. It was very disturbing . . . ."
Dow said that when Fierro was sent to death row in 1980, he was a
soft-spoken, slightly overweight man in his mid-20s who was highly
respectful of his lawyers and the process, which he felt would set him
free.
"When I saw him last year, he had long, stringy hair and a strong wind
could have blown him over," says Dow. Even when told of some good news
from the courts, Fierro raged and rambled incoherently, banging the
phone against the glass partition of the visiting room.
Fierro's case is one among about 50 similar cases in which the
International Court of Justice recently ruled that the convictions and
death sentences of Mexican nationals should be given further review in
U.S. courts. President Bush has ordered the courts in Texas and
elsewhere to comply with the World Court's ruling, but Texas
authorities have said Bush lacks the proper authority. The issue of the
effect of the World Court's ruling is currently before the U.S. Supreme
Court. (Texas Lawyer, May 2, 2005). See Foreign Nationals; also DPIC's
description of Medellin v. Dretke (in U.S. Supreme Court); Mental
Illness and Time on Death Row.
notes:
Here are the principal cases we’re watching from today’s conference.
Orders will be released on Monday at 10a.m., along with opinions
[including]:
No. 04-1170, Kansas v. Marsh – the
question is whether the
Constitution permits the imposition of the death penalty when evidence
of aggravating and mitigating circumstances is in equipoise, or whether
the aggravators must outweigh the mitigating circumstances.
